GAGANDEEP SINGH (Migration)

[2020] AATA 183

GAGANDEEP SINGH (Migration) [2020] AATA 183 (3 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  GAGANDEEP SINGH

CASE NUMBER:  1928137

HOME AFFAIRS REFERENCE(S):           BCC2019/3200370

MEMBER:Amanda Upton

DATE:3 February 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 03 February 2020 at 12:01pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – not enrolled in a registered course – not enrolled at the required AQF level – consideration of discretion – reliance of education agent – responsibility of visa holder – purpose of travel and stay in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 October 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2.    The delegate cancelled the visa on the basis that the applicant had not complied with condition 8202(2)(a)&(b) in that he had not maintained enrolment in a registered course at the same level or higher than, the registered course in relation to which the visa was granted. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3.    The applicant appeared before the Tribunal on 17 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4.    The applicant was represented in relation to the review by his registered migration agent.

5.    For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

Did the applicant comply with Condition 8202?

7.    Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

·be enrolled in a full time registered course: 8202(2)(a)

·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

8.    In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course at the level for which the visa was granted.

9.    The applicant was granted a visa to study a Bachelor of Science (Mechanical Engineering) which he commenced in January 2018. His enrolment in this course was cancelled on 2 July 2018. The applicant indicates that he only completed one semester of the course. He subsequently obtained enrolment in a Bachelor of Business Information Systems that commenced in July 2018. He indicated that he only completed one semester of this course. Enrolment in this course was cancelled on 14 May 2019.

10.The applicant subsequently obtained enrolment in a Diploma of Leadership & Management that commenced in April 2019. Enrolment in this course was obtained on 14 March 2019.

11.Given the above, the applicant has not been enrolled in a course at the same level or higher than, the registered course in relation to which the visa was granted, from 14 May 2019 as this is the date that the enrolment in the Bachelor of Business Information systems was cancelled.

12.The applicant conceded that he was in breach of his visa condition due to not being enrolled in a registered course at the level for which the visa was granted.

13.On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course at the same level or higher than, the registered course in relation to which the visa was granted. Accordingly, the applicant has not complied with condition 8202(2)(a).

Consideration of the discretion to cancel the visa

14.Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction ‘General visa cancellation powers’.

Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

15.The applicant indicated to the Tribunal that he had initially wanted to study a Diploma course however on the advice of an education agent that it was easier to get enrolment in a Bachelor course, he therefore enrolled in a Bachelor course.

16.The applicant said that he tried his best to do the first Bachelor course that he was enrolled in however found the work difficult and found he was failing. He said that he was advised by the education agent to try a different Bachelor course. He did so and experienced the same difficulties with the workload. He then changed to a diploma level course. When asked about how he made choices with respect to what courses to enrol in, the applicant replied that he just did as advised by the education agent.

17.The applicant is currently studying an Advanced Diploma of Leadership and Management due to finish in April 2020. The Tribunal notes that the Diploma course the applicant is currently undertaking is of a different nature to the Bachelor courses he was originally enrolled in. The applicant told the Tribunal that he decided to enrol in the Diploma course as he wanted to do business and was unaware at the time that he would be in breach of his visa by enrolling in a lower level course. He became aware when notified by the Department.

18.The applicant conceded that he had read his visa paperwork however was still unaware of the conditions of his visa relating to the course level. 

19.The Tribunal finds it unsatisfactory that the applicant relied so heavily upon an education agent and did not take responsibility himself for ensuring he understood and complied with his visa conditions. The Tribunal accepts that applicants rely on education agents for advice however does not consider it acceptable that an applicant would cede all responsibility in relation to course choices and knowledge of obligations. It is expected that visa holders ensure that they are aware of and comply with their obligations.

20.The Tribunal does not consider that the circumstances leading up to the visa cancellation involved matters that were beyond the control of the applicant. The Tribunal gives the circumstances under which the cancellation arose, significant weight in favour of cancelling the visa.

The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

21.The applicant said that the purpose of his travel to Australia was to complete his Bachelor of Science. He indicated no other reason for traveling and remaining in Australia other than to study.

22.The Tribunal considers the circumstances of the cancellation and particularly how the applicant describes the manner in which he selected his courses. The Tribunal considers that the applicant took advice from an education agent and selected courses for the primary purpose of being able to stay in Australia rather than a desire to study. It is indicative of the student visa system being used to maintain residence in Australia and as such the Tribunal considers that the applicant’s primary purpose for travel and stay in Australia is not to study.

23.The Tribunal gives this consideration significant weight in favour of cancelling the visa.

The extent of compliance with visa conditions

24.The applicant failed to comply with the condition of his visa for a period of approximately 5 months. The Tribunal takes into account the way in which the non-compliance arose and considers it to be serious. The Tribunal gives this consideration weight in favour of cancelling the visa.

Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

25.The applicant indicated that a significant amount of money had been spent for him to study in Australia and that it would go to waste if the visa was cancelled. He believes that he would have to repay them.

26.The applicant feels that if the visa as to be cancelled he would have lost almost 4 years of his life, that if he has to go back to India, it will take him 3-4 years to establish his career.

27.The applicant told the Tribunal that a cancellation would affect him emotionally  as would it affect his parents.

28.Tribunal accepts that a cancellation of a visa results in opportunities lost and disappointment. It also accepts that there will be a financial loss for the applicant and a delay in achieving what they may have wanted to achieve in Australia.  However, it is expected that there will be consequences to a cancellation. As such, the Tribunal gives minimal weight to these considerations raised by the appliant.

Past and present behaviour of the visa holder towards the department

29.There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight in favour of the applicant.

Whether there would be consequential cancellations under s.140

30.There are no other people associated with the visa and as such the Tribunal affords this factor no consideration.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

31.If the visa is cancelled, the applicant will become a non-lawful citizen and his ability to apply for other visas would be limited. Whilst unlikely in this instance, he could be detained until he made arrangements to leave the country.

32.The applicant would also be section 48 barred and may not meet the requirement for certain visas for three years.

33.The Tribunal sees these as natural consequences of the cancellation of a visa. The applicant retains his passport and is able to return to India. The applicant raised no reason that he would be unable to return to India.

34.The Tribunal gives this factor minimal weight in favour of the applicant.

Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation.

35.The applicant has provided no reasons for being unable to return to India as such the Tribunal affords this factor no weight.

36.Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

37.      The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Amanda Upton
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

(a)a Defence student; or

(b)     a Foreign Affairs student; or

(c)      a secondary exchange student.

(2) A holder not covered by subclause (1):

(a)       must be enrolled in a full time registered course; and

(b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

(c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

(a)      is enrolled in a course at the Australian Qualifications Framework level 10; and

(b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.